House of Representatives Committees

Chapter 6 Enforcement and remedies

[National Network of Working Women’s Centres] know that the
current regulatory system is not working because of the sheer volume of women
who seek our assistance with workplace bullying and because of the fact that so
few of those women are able to seek an appropriate legal remedy.[1]

I do not believe that only using the occupational health and
safety legislation is enough. I believe we need to have laws that protect
workers, just like they do with sexual harassment. Bullying and harassment
needs to be brought from the darkness into the light and it needs to happen
now.[2]

Law can provide a powerful incentive for employers to provide
bullying-free workplaces.[3]

Introduction

6.1Despite efforts to prevent workplace bullying and resolve it through
early intervention measures, some cases escalate to the point where the
targeted worker is injured or has to remove themselves from the workplace to
avoid injury.

6.2Targets of bullying expressed a sense of injustice because bullies and
employers who did not protect them from bullying were not held accountable for
their inaction.[4] Work health and safety (WHS)
regulators are criticised for not investigating complaints of bullying or prosecuting
or issuing compliance notices to people for breaching their duties of care. The
police can be called on to prosecute individuals who commit criminal acts, such
as assault and stalking, when they bully others at work.[5]

6.3Feelings of injustice and powerlessness are amplified for the many
people who discover they have no right of individual recourse to seek remedies
such as compensation or damages for the injury they suffered because of
workplace bullying.

6.4Chapter 2 identified the enforcement measures available under WHS law
and criminal law to penalise those who engage in, or employers who do not
adequately prevent, workplace bullying. It also identified the more limited
individual remedies available under anti-discrimination law and industrial
relations law, as well as workers’ compensation arrangements available to some
workers.

6.5In addition to the limited remedies for individuals, many people spoke
of being unable to return to work owing to injuries they had sustained because
of workplace bullying, particularly mental health injuries. This indicates there
may be a lack, or a perceived lack, of support for these workers to return to
the workforce.

6.6This chapter will consider the responses that are available, or should
be available, to cases of workplace bullying that have not been resolved
through early intervention. Specifically, it will consider:

whether the
enforcement measures currently available are sufficient to respond to all
instances of workplace bullying and whether they are effectively applied;

whether there is a
need to improve access to individual remedies for those adversely affected by
bullying at work; and

what support services
can be provided to assist workers injured by bullying to return to the
workforce.

Enforcement

6.7Under WHS or criminal legislation, criminal charges may be brought against
an individual who bullies others in the workplace.

6.8Employers can be charged for breaching their statutory WHS duties by not
complying with their duty of care to protect workers from the risk of workplace
bullying.[6]

6.9Harmers Workplace Lawyers argued that in order to truly deter workplace
bullying there is a need for a new law specifically prohibiting workplace
bullying, with timely and effective enforcement measures.[7]
There is no such prohibition in any current WHS or criminal laws across
Australia.[8]

6.10However, the value of such a law was challenged by claims that current
laws adequately address workplace bullying.[9] People and Culture
Strategies, a specialist workplace relations law firm that assists employees
and employers in dealing with workplace bullying matters, argued that new
legislation could have a detrimental impact:

...if further legislation is enacted to prohibit workplace
bullying it is highly likely that this will lead to vexatious bullying claims
which has the unfortunate impact of detracting attention from genuine claims.[10]

6.11The Chamber of Commerce and Industry Queensland (CCIQ) also argued ‘that
there is already sufficient existing legislation through which workplace
bullying can be addressed’.[11]

6.12Mr Nick Behrens, General Manager at CCIQ referred to report findings of
a ministerial working group, established by the previous Labor Government in
Queensland, that the existing laws should be more strongly enforced:

It is interesting that … that reference group … concluded
that no additional regulation was necessary but we needed to enforce what
legislation was in place and we needed to significantly increase those
activities associated with raising awareness and educating stakeholders in what
their responsibilities were.[12]

Work health and safety laws

6.13Where breaches of WHS laws are detected an inspector can enforce the law
by issuing improvement or prohibition notices or escalating the action to
formal procedures notices which are addressed through the courts for serious
contravention of the legislation’.[13]

The regulator could investigate and put in an infringement
notice, an improvement notice saying, ‘Your risk control measures are not
adequate; these are the things you need to do to improve,’ or a prohibition
notice potentially. The regulator could prosecute the employer if it is a
particularly bad case. I think the attractiveness of this model is that there
is a whole suite of different enforcement mechanisms from education right
through to prosecution that a regulator can use.[14]

6.15A strategic approach is taken to determine what enforcement method
should be used. Comcare explained how Commonwealth WHS inspectors determine the
appropriate action:

The type of intervention required will be determined based on
an analysis of the allegation, the action taken (or not taken) by the employer
and its previous compliance history.[15]

Inadequate enforcement of work
health and safety laws

6.16Although it was acknowledged that there has been some enforcement of WHS
laws by the regulators to hold employers accountable for breaching their duty
of care, employee support organisations and lawyers criticised regulators for
not enforcing the law often enough.[16]

6.17Ryan Carlisle Thomas Solicitors (RCT Solicitors) contended:

The number of prosecutions for ‘bullying’ behaviour remains
low and there is room for improvement in terms of regulators’ responses to
‘bullying’ complaints.[17]

6.18The Australian Council of Trade Unions (ACTU) argued that enforcement of
the law in response to non-physical workplace bullying is particularly poor.[18]
On this point, Mr Michael Harmer from Harmers Workplace Lawyers said:

I am aware of safety prosecutions relating to bullying, but
they are rare and they normally relate to the more extreme cases, because it is
difficult for the inspectors to detect and protect against that area.[19]

6.19The Community and Public Sector Union said that the lack of prosecutions
brought by work health and regulations ’fails to provide general and specific WHS
deterrence’.[20]

6.20The Australian Nursing Federation (Victorian Branch) commented that poor
enforcement can also hinder public awareness of the law:

...there is a significant lack of knowledge at the community
level in relation to this framework [for the prevention and management of
workplace bullying] due to lack of community education and enforcement by the
regulator.[21]

6.21JobWatch stated that the burden on the regulators to prove beyond
reasonable doubt that workplace bullying occurred was discouraging regulators
from bringing about more prosecutions:

Due to there being a criminal standard of proof...WorkSafe
[Victoria] seems to prosecute only where there is an admission of bullying by
the employer and/or its employees or where there is overwhelming evidence e.g.
video evidence etc. ... The criminal standard of proof is therefore prohibitive
to obtaining penalties against workplace bullies and to creating any real deterrent
effect.[22]

6.22The Community and Public Union suggested that improvement notices should
require employers to improve their management of workplace bullying and
therefore prevent it from happening rather than relying on prosecutions which ‘are
the end of the process.’[23]

Improvement and prohibition notices

6.23Improvement notices are used by WHS regulators to require duty holders
to improve standards to comply with their health and safety duties. Master
Builders Australia explained that these notices ‘outline the nature of the
breach and can include directions as to the measures that the duty holder needs
to take in order to rectify the breach’.[24]

6.24Prohibition notices on the other hand require a duty holder to cease a
prohibited action immediately.

6.25Mr Paul O’Connor, Chief Executive Officer of Comcare explained that his
agency uses improvement and prohibition notices to encourage employers to
improve how bullying, harassment and inappropriate work relationships are being
addressed.[25]

6.26It appears that regulators use notices sparingly and that prohibition
notices are less commonly used than improvement notices. The ACT Government stated
that ‘[i]n 2010-11 four improvement notices and one prohibition notice were
issued by WorkSafe ACT in response to specific matters involving allegations of
bullying at work’.[26] The Comparative
Performance Monitoring Report, published by Safe Work Australia each year,
provides details on the number of notices issued by regulators each year.[27]
At the time of reporting, the 2012 edition which would include the data from
2010-11 had not been released. However, the previous edition in 2009-10 showed
that the ACT issued 187 improvement notices in total and 103 prohibition
notices in relation to all types of WHS breaches in the Territory.[28]

6.27SafeWork SA said that since 2006 they had issued 174 improvement
notices, but no prohibition notices.[29] By comparison earlier
figures from mid-2006 to mid-2010 indicate that the South Australia regulator
issued 9823 improvement notices and 2578 prohibition notices for breaches of WHS
legislation.[30]

6.28The Committee did not receive evidence on the number of notices issued
by the regulators in the other jurisdictions but the Commonwealth and New South
Wales regulators commented that they do issue notices in relation to workplace
bullying cases.[31]

Prosecutions

6.29The National Network of Working Women’s Centres (NNWWC) said that being
‘witness to the successful prosecution against perpetrators of workplace
bullying by WHS or other regulators’ is essential for educating the broader
community about the consequences of allowing or engaging in bullying in the
workplace.’[32]

6.30Limited evidence was received in relation to the number of prosecutions
pursued in relation to workplace bullying under WHS laws across Australia. SafeWork
SA commented that no prosecutions for workplace bullying had been pursued in
South Australia and that very few files reached the stage of being considered
for prosecution.[33] The lack of prosecutions
may reflect the complexities of dealing with bullying matters:

... as it is often difficult to establish whether or not the
alleged behaviours constituted workplace bullying or rather were reasonable
actions taken by an employer.[34]

6.31A 2010 Productivity Commission report indicated that ‘Victoria and New
South Wales had been the most active in pursuing incidents of bullying in the
courts’.[35] However, WorkCover New
South Wales submitted that although there had been some recent convictions for
bullying involving physical injury, they did not know of any bullying prosecutions
which related only to psychological injury.[36]

6.32Mr Mark Crossin, Occupational Health and Safety Officer of Unions NT,
said that between 2002 and 2008, when he was Director of NT WorkSafe, the
regulator did not prosecute anyone in relation to psychological behaviours like
workplace bullying.[37]

6.33These low prosecution rates across Australia are criticised as
indicative of regulators not adequately addressing workplace bullying. For
example, Mr Crossin argued that the WHS regulators have not effectively responded
to workplace bullying. He contended that their inaction was largely associated
with a lack of relevant expertise in the area of workplace bullying but that it
was also because the regulators were under -resourced.[38]

6.35Others suggested that the low prosecution rates are largely due to the
difficulties of gathering sufficient evidence to support a court case,
particularly where the bullying is not overt. For instance, Mr Neale Buchanan,
the Director of Operations at Workplace Standards Tasmania, said, ‘it is very
difficult to find a clear-cut, black-and-white proven beyond reasonable doubt
prosecution case.’[40]

6.36Similarly, the Government of South Australia submitted:

Because of the nature of bullying behaviour, it is often
exceptionally difficult to prove ‘beyond reasonable doubt’ that bullying
occurred, as even overt behaviours are rarely witnessed either individually or
electronically. This is one of the key reasons why bullying is so difficult to
prosecute as a WHS breach under the WHS legislation.[41]

6.37The Independent Education Union of Australia (IEUA) argued that these
difficulties weaken the deterrent effect of the laws:

Current regulatory frameworks place the burden of proof upon
the prosecuting party and the standard of proof is beyond reasonable doubt. The
outcome is often a long delay in progressing from initial complaint to a court
hearing. Setting aside the impact of bullying upon effected members and their
families, such challenges risk creating a culture in duty holders of being
unlikely to be prosecuted. It is the opinion of the IEUA that existing regulatory
frameworks do not provide a sufficient deterrent against workplace bullying.[42]

Training

6.38Union groups argued that WHS laws are not enforced more often because WHS
inspectors are not adequately resourced and skilled to investigate and respond
to workplace bullying.[43]

6.39Mr Rex Hoy, Chief Executive Office of Safe Work Australia, said:

I think the jurisdictions will tell you that they really do
not have the capacity to train up their people. Equally they have issues about
training their inspectors to enforce the legislation.[44]

6.40Ms Caroline Dean, the President of Challenge Bullying contended that inspectors:

have very good training around occupational health and safety
physically but they do not have it around bullying and harassment. In my
experience, when inspectors are called in to examine a case that somebody
believes is bullying, they often do not find in favour of that person; they
find in favour of the organisation, because they do not understand the
complexities and nor do they understand the operation of power [at the workplace].[45]

6.41As workplace bullying and other psychological hazards at the workplace
are so different to physical hazards, inspectors cannot rely on the same skills
and knowledge to effectively investigate each. For that reason some
organisations, including WHS regulators, submitted that inspectors need to be
specially trained in how to investigate and respond to workplace bullying
complaints to ensure that the law is enforced properly and effectively in this
area.[46]

6.42SafeWork SA explained the types of skills and knowledge that inspectors
need:

In order to overcome the difficulties in assessing
psychosocial risks, it is important for inspectors handling bullying complaints
to have a good working knowledge of the factors that lead to, and increase the
likelihood of such hazards arising in the workplace.[47]

6.43The South Australian Government discussed why it is so important that
inspectors possess specialist skills when investigating workplace bullying:

It is fundamentally important that inspectors are well
trained and skilled in order to gain community respect in dealing with this
very challenging issue. WHS inspectors must be able to go out into the community
and possess the right set of skills, knowledge and understanding to raise awareness
of the psychosocial hazards associated with workplace bullying. They need to assist
businesses with the necessary resources and information dealing with
prevention, management and control of bullying hazards. Inspectors must also
have the right set of skills and experience to be able to respond to bullying
complaints and conduct their investigations in a timely, efficient and
sensitive manner.[48]

6.44The NNWWC commented that the current skill levels of inspectors vary
between jurisdictions:

Some [W]HS regulators are staffed with specialist
psychosocial complaints handlers who have specialist workplace bullying skills and
knowledge. Some [W]HS complaints handlers do not.[49]

6.45This was evident in comments received from the Tasmanian regulator. Mr
Neale Buchanan, Director of Operations at Workplace Standards Tasmania who said
that they currently have only two inspectors who are adequately skilled to
address workplace bullying complaints.[50]

6.46Indicative of similarly low levels of expertise in Northern Territory, Ms
Rachael Uebergang, the Co-coordinator of the Northern Territory Working Women’s
Centre that WorkSafe NT may not be as equipped as other regulators to respond
to take on complaints of workplace bullying and investigate them.[51]

6.47This is in stark contrast to the approach taken in Queensland. Ms Jan
Shepphard, Senior Industrial Advocate from the Australian Services Union (ASU) commented
that the Queensland regulator has a specialist psychosocial unit with a staff
of trained psychologists to address complaints such as workplace bullying.[52]

6.48Similarly, Comcare referred to an ‘established … specialist team to
focus on workplace bullying – the Workplace Relationship Resolution Team’.[53]

6.49SafeWork SA also noted specific training to be provided to inspectors in
2012, to be run by the Centre for Applied Psychological Research this year.[54]

6.50However, personal impact statements at public hearings and submissions from
individuals suggested wide-spread gaps in every Australian jurisdiction.

6.51The Government of South Australia suggested that there is scope within
the WHS harmonisation process for Safe Work Australia to develop ‘a national training
programme to equip WHS inspectors with the skills required to deal with
bullying issues, including the provision of mediation and conciliation services’.[55]

Committee comment

6.52WHS regulators in all jurisdictions have identified the need for
inspectors to be trained to respond specifically to complaints of workplace
bullying. However, it appears that resource constraints have limited the
ability to provide such training.

6.53The Committee supports the suggestion from the Government of South
Australia that a national program for WHS inspectors be developed because a
harmonised approach to training can allow a program that borrows from the
experience and knowledge of each of the jurisdictions to be developed. It means
that all jurisdictions can train their inspectorate in what is best practice in
responding to workplace bullying. Coordinating resources to develop training
could also assist those jurisdictions with fewer resources.

6.54The suggestion of training inspectors in conciliation or mediation is
also supported. However, the training program should aim primarily to assist
inspectors in identifying when mediation or conciliation may or may not be
appropriate. It should be noted that conciliation and mediation procedures
should not be mandatory in all cases of workplace bullying because, as discussed
in chapter 5, in some cases they can cause more damage than repair already
fractured workplace relationships.

Recommendation 20

6.55

The Committee recommends that the Commonwealth Government,
through Safe Work Australia, develop a national accredited training program
for all work health and safety inspectors that equips inspectors to identify
and address instances of workplace bullying.

Harmonising an approach to
enforcement of work health and safety laws in workplace bullying cases

6.56WHS regulators cannot investigate all complaints of workplace bullying.[56]
Not only would so doing impose an unrealistic burden on resources, there is no
doubt some complaints can be resolved by the provision of advice to the
complainant on initial contact.

6.57Evidence suggests that each of the WHS regulators utilise an assessment tool
when determining which complaints should be further investigated. Following an
investigation an inspector will make a determination of which, if any,
enforcement measures should be used.[57]

6.58However, the NNWWC explained, that in their experience, the responses of
regulators to workplace bullying complaints vary between jurisdictions:

The manner in which workplace bullying enquiries and
complaints are handled by [W]HS authorities varies greatly between
jurisdictions. ...Whilst some Working Women’s Centres have success in enabling
their clients to have complaints of workplace bullying investigated by their [W]HS
regulator, some Working Women’s Centres find that their [W]HS regulator will
not accept or action an enquiry or complaint of workplace bullying. It is not uncommon
for complainants in some jurisdictions to be informed by a staff member of an [W]HS
regulator that they do not deal with workplace bullying and inappropriately
refer the matter to an anti-discrimination commission or Fair Work Australia.[58]

Harmonised approach to compliance
and enforcement

6.59The Government of South Australia submitted that there is ‘scope to
develop a national enforcement and compliance manual to deal specifically with
bullying matters and that doing so could improve people’s experiences when
dealing with the regulators.’[59] They explained that a
harmonised approach to compliance and enforcement, in addition to consistent
training for inspectors, could:

... potentially assist the dispute resolution process and act
as a support for preventative measures to be established in workplaces, as well
as providing a heightened awareness among employers and employees of the
consequences of workplace bullying. A common set of regulatory principles and
approaches to workplace bullying would also create consistency for the national
inspectorates in the investigation and management of workplace bullying
complaints.[60]

6.60Harmonising regulators’ approaches to compliance and enforcement is
already underway, but not specifically in regards to workplace bullying. Safe
Work Australia noted that as part of the harmonisation package a National
Compliance and Enforcement Policy was developed.[61]
The Policy was endorsed by all jurisdictions in November 2011.[62]

6.61The Safe Work Australia website explains:

The National Compliance and Enforcement Policy sets out the
approach work health and safety regulators will take to compliance and
enforcement under the model WHS Act and Regulations.[63]

Committee comment

6.62It would be a positive step to harmonise the approach regulators take to
encouraging compliance and determining when enforcement measures should be
imposed on those who breach their duties. Such harmonisation might provide an
opportunity to reassure the community that WHS regulators in all jurisdictions
respond effectively to workplace bullying. There is also an opportunity for
regulators to improve their approaches by sharing skills and expertise.

6.63It is unclear whether the National Compliance and Enforcement Policy
developed by Safe Work Australia has been implemented by all of the
jurisdictions, or just those that have enacted the model WHS laws.[64]
However, the endorsement of the policy demonstrates a willingness of the
regulators to harmonise their approach to encouraging compliance with WHS laws
and using enforcement measures.

6.64Any national compliance and enforcement policy specific to workplace
bullying should have a similar approach to the broader, current National
Compliance and Enforcement Policy insofar as it should encourage regulators to
adopt a balance between compliance monitoring and enforcement to deter
non-compliance with the use of positive motivators to encourage compliance.[65]
This approach could assist in creating a more proactive approach to managing
workplace bullying and in turn assist in lowering rates of workplace bullying.

6.65Developing a national compliance and enforcement policy specific to
workplace bullying could complement the ongoing work that Safe Work Australia
is doing in developing the model Code of Practice:Managing the Risk
of Workplace Bullying.

Recommendation 21

6.66

The Committee recommends that the Commonwealth Government
seek agreement from the work health and safety regulators of each
jurisdiction through the Safe Work Australia process, for the development and
endorsement of a uniform national approach to compliance and enforcement
policy for preventing and responding to workplace bullying matters.

Accountability where workers’ compensation
is awarded

6.67Each jurisdiction provides workers’ compensation under no-fault schemes.[66]
This means that a successful workers compensation claim is based only on
whether the injury or harm suffered related to work, not on whether someone at
the workplace or the employer is at any fault for the injury or harm.

6.68In many jurisdictions the WHS regulator is the same organisation
responsible for the jurisdiction’s workers’ compensation scheme. WorkCover NSW supported
both authorities being within the one organisation that allowed them to monitor
files and investigate when there is a change that might indicate a WHS issue.[67]

6.69Despite the complementary way in which WHS and workers’ compensation
laws appear to work, the ACTU argued that there is a significant disconnect
between them. They said that there are many cases where a worker has made a
successful workers compensation claim for an injury resulting from workplace
bullying but the WHS regulator has not been able to substantiate the
allegations of workplace bullying. Thus, no one is held responsible for the
bullying and breaching their WHS duties.[68]

6.70The Victorian Trades Hall Council (VTHC) submitted that because of this
disconnect between successful workers’ compensation claims and enforcement of WHS
‘the bullying behaviours which caused the injury are rarely addressed and
prevented from [re]occurring’.[69]

Committee comment

6.71The importance of having no-fault workers’ compensation schemes is to
ensure that injured workers can be fairly compensated without prejudice for
injury or harm which is attributable to their work. However, this principle
should not prevent a party from being held responsible for breaching their WHS
duties where the injury sustained was a result of that breach.

6.72Indeed, a better connection between workers’ compensation decisions and
the enforcement of WHS laws could provide better outcomes for all workers. If
employers are more often held responsible under the law for breaches of their
health and safety duties that led to injuries for which workers have received
workers’ compensation there would be more incentive for them to improve their
management of the risks of workplace bullying.

6.73The Committee understands that if a workers’ compensation claim for a
workplace injury, be it for a physical or psychosocial injury, is successful, Comcare
currently does not investigate whether there has been a breach of WHS duties at
the workplace.

6.74The Committee would like to recommend that once awarding a compensation
claim and where there is evidence of workplace bullying, Comcare should determine
whether a breach of WHS duties has also occurred. However, that would entail a
wider review of workers compensation which is beyond the scope of the inquiry’s
terms of reference. A site visit or investigation could potentially
differentiate between the treatment of physical and psychosocial injuries. If
workplace bullying was found to have caused a breach of WHS duties, that
finding could help to highlight the problem and ensure that the employer takes
steps toward remedying the breach.

6.75The Committee is aware that some jurisdictions may reward employers
through workers’ compensation premiums for good risk management. Similar
disincentives for those employers who do not comply with their WHS duties could
perhaps encourage greater compliance and management of the risks of workplace
bullying.

Criminal law

6.76There were some calls for a national criminal law, based on Brodie’s Law
in Victoria, expressly prohibiting workplace bullying.[70]
However, constitutional limitations mean that it is not possible for the Commonwealth
to make a law criminalising any bullying or anti-social behaviour other than
that which is typical of cyber bullying.[71] This is because the
Commonwealth’s powers in this regard are restricted to the use of a carriage
service, such as the internet or telephones, to menace or harass another
person.[72]

Need to clarify the effect of State
and Territory criminal laws

6.77Some state and territory criminal laws, such as the Australian Capital
Territory’s Crimes Act 1900 and the Western Australian Criminal Code Compilation
1913, were purported to have the same effect as Brodie’s Law in Victoria.[73]

6.78However, there were also suggestions that some state and territory criminal
laws are not as far reaching as Brodie’s Law. For example, Mr Kevin Harkins,
the Secretary of Unions Tasmania, commented that Tasmania does not have the
same criminal offence of stalking that is fundamental to Brodie’s Law in the
Victorian Crimes Act 1958.[74]

6.79Furthermore, Mr and Mrs Panlock, the parents of Brodie Panlock, suggested
that in some cases the police are reluctant to enforce the criminal law in
cases of workplace bullying. They commented that there were no criminal charges
laid by the police in relation to the suicide of their daughter following
ongoing and insidious workplace bullying.[75] Mr Panlock said:

At the time the police did not want to pursue it any further.
We did have one particular officer that went way beyond what she should have
done or was supposed to do, and she is still trying, but to no avail. There is
still assault, and there were certain other laws back then that could have been
proceeded with, but the police did not go any further. We have spoken to
high-ranking police as well, and they all sort of just go, ‘Thwip!’[76]

6.80In August 2012, the Victorian Attorney-General, the Hon. Robert Clark,
launched the ‘Take a stand against bullying’ campaign, which is being supported
by Mr and Mrs Panlock to:

[urge] workplaces to take a stand against bullying and report
such behaviour to authorities...[and] will see information about bullying and
bullying laws distributed to more than 8,000 schools, workplaces and police
stations across Victoria.[77]

Criminal sanctions should
complement enforcement of WHS laws

6.81It was strongly argued that criminal enforcement should not be a
replacement or an alternative to enforcement of WHS laws.[78]

The primary intended outcome of developing criminal laws is
the punishment of individuals, with the flow on effect of deterrence. This
approach seems to fall into the trap of viewing bullying as a one-on-one
interpersonal exchange, based solely on interpersonal issues, where one
individual should be held responsible for their effects on another (after those
effects have occurred). This may be appropriate in some extreme cases, but in
most cases...the role of the context and work environment is important in both
preventing bullying from occurring in the first place, and/or from mitigating
its effects.[79]

[the] emphasis [is]on holding individual bullies responsible
when it is too late rather than [on] an employer’s obligation to provide a safe
workplace.[80]

6.84Similarly, Associate Professor Maryam Omari, who has conducted extensive
research on workplace bullying in Australia in the past decade, commented that
criminal legislation to deal with workplace bullying may result in addressing
the issue when it is too late, that is, when the target of the bullying has
already been adversely affected.[81]

6.85Mr Bryan Russell, Executive Director of SafeWork SA said that the South
Australian Government supports workplace bullying continue to be dealt with in
a WHS context rather than in a criminal law context:

Elimination of bullying behaviour is central to the dynamics
of safe and healthy workplaces, and bullying is a hazard that can have
significant long-term effects on a worker's psychological health, safety and
welfare. Therefore, it should be treated like any other workplace hazard with
the aim of identifying the hazard, assessing the risks and implementing steps
to eliminate or minimise any identified risks.[82]

6.86However, arguing for the consideration of workplace bullying primarily
as a WHS issue does not preclude the availability of criminal sanctions in
serious cases.[83] For instance, Safe Work
Australia submitted:

While WHS laws are an appropriate way to prevent and address
workplace bullying and strong penalties are included in the model WHS Act for
serious bullying, it is still appropriate that serious cases of bullying are
capable of being addressed under the relevant criminal law system.[84]

6.87The availability of criminal law in those cases reflects that, whether
committed in a workplace or elsewhere, a person who commits a criminal offence
should be penalised accordingly under criminal laws.

Criminal laws and deterrence

6.88The mere existence of criminal laws and the potential to be held liable for
bullying someone in the workplace can serve as a significant deterrent to
workplace bullying.[85]

6.89Dr Donna-Louise McGrath, a researcher who has written a number of
articles about workplace bullying and workplace behaviours commented:

The national introduction of ‘Brodie’s Law’ could be a
greater deterrent [than work health and same duties alone] to workplace
bullying because perpetrators and their allies may have a greater fear of the
personal consequences of their actions. At present, many perpetrators are able
to bully without fear of punishment. In addition, individuals who are unlikely
to bully alone may participate in bullying within the ‘safety net’ of a group;
perhaps reasoning that any punishment will be apportioned between members of
the group. An awareness of Brodie’s Law could thus make every participant in
bullying responsible for their behaviour.[86]

6.90Mr Michael Harmer of Harmers Workplace Lawyers submitted that the
response of employers to the introduction of Brodie’s Law is illustrative of
the deterrent effect criminal laws can have:

There was, around the introduction of [Brodie’s Law], a spate
of education in corporations across Australia reinforcing the importance and
the alignment of genuine systems of management to the achievement of the
prevention of bullying.[87]

Committee comment

6.91Workplace bullying should first and foremost be dealt with by
enforcement of WHS laws. Only those laws can be used to hold employers (the
legal entity, not necessarily the individual) accountable for their part in
allowing workplace bullying to occur; for not effectively managing the risks of
workplace bullying. And only WHS laws promote a risk management approach to
workplace bullying; requiring employers to prevent, as far as reasonably
possible, workplace bullying from occurring rather than responding to
complaints of bullying when it is ‘too late’ for the targets of the bullying
who have already been affected.

6.92WHS laws can also be used to hold individual workers who participate in
bullying accountable for any act of workplace bullying, regardless of the
severity of the consequences. This is significant because it is not only bullying
of a criminal nature that should be penalised. All perpetrators of workplace
bullying should be held to account to ensure that this type of behaviour is eradicated
across Australia, whether that accountability is made at the workplace level or
through the WHS regulator. In some instances, being held accountable under
workplace bullying policies by their employer may be sufficient to deter
further bullying.

6.93Criminal prosecution should not be seen as an alternative to enforcement
of WHS law because the laws serve different objectives. This is especially
significant where there are suggestions that the employer may have breached
their duty of care to workers by negligently or recklessly failing to prevent
workplace bullying because they cannot be penalised under criminal laws.

6.94The Committee was saddened to hear of a workplace bullying case in
Victoria where it was reported that WorkSafe Victoria failed to take any action
because the individual perpetrator had been charged under criminal legislation
with assault.[88] It appeared that no
action was taken against the employer despite reports they had knowingly failed
to prevent the risks of bullying at the workplace. It is important that serious
acts of workplace bullying that amount to criminal offences under criminal
legislation should be punished as such.

6.95There is some disagreement amongst stakeholders as to whether all
current state and territory criminal laws can be used to penalise perpetrators
of serious instances of workplace bullying in the same way that the Victorian Crimes
Act 1958 follows the amendments made by Brodie’s Law. The Committee
received evidence indicating uncertainty in the community of the powers of
current criminal laws as well as the willingness of police to enforce those
laws. Regardless of the location, a criminal offence should be treated as such
and everyone should know that they are protected from criminal behaviour both
inside and outside of the workplace.

6.96An overriding message of the inquiry is that the laws to-date (in the
way that they have been implemented) do not necessarily deter workplace
bullying behaviour. The hundreds of submissions to the inquiry show this to be
the case. The Committee received evidence indicating uncertainty in the
community about the powers of current criminal laws as well as the willingness
of police to enforce those laws. Regardless of whether this is due to a lack of
prosecutions or need for greater education about their existing powers the
Committee recommends that states and territories revisit their criminal laws in
this area.

6.97At the Standing Council on Law and Justice meeting in November 2011, members[89]
noted the introduction of Brodie’s Law in Victoria. They also noted:

the importance of finding effective means of dealing with all
forms of bullying whether in the workplace, school yard, sporting club,
cyberspace or elsewhere.[90]

6.98Given the interest of the Standing Council in addressing workplace
bullying, the Committee suggests that it may be the most appropriate forum for
the Commonwealth Government to facilitate coordination and collaboration
between state and territory counterparts on the effectiveness of criminal laws
to deal with serious instances of workplace bullying and a willingness of
authorities to enforce those laws when appropriate. It is important to convey a
single and united message that workplace bullying is not tolerated in
Australian workplaces; that such behaviour has consequences and can be
prosecuted by criminal law.

Recommendation 22

6.99

The Committee recommends that, through the Standing Council
on Law and Justice, the Commonwealth Government:

encourage
all state and territory governments to coordinate and collaborate to ensure
that their criminal laws are as extensive as Brodie’s Law; and

encourage
state and territory governments to consider greater enforcement of their
criminal laws in cases of serious workplace bullying, regardless of whether
work health and safety laws are being enforced.

Individual right to seek remedies

6.100Many individuals spoke of the financial hardship as well as
psychological and physical injuries that they have endured because of their workplace
bullying experiences. In many instances, financial hardships result from being
unable to work because of their injuries and the legal costs associated with
trying to obtain some compensation or other remedy for the bullying they
endured.[91]

6.101The only remedy that may be available to bullied workers is workers compensation,
which few people can make a successful claim for based on the nature of
workplace bullying injuries, or compensation if they can prove the bullying was
unlawful under anti-discrimination law or the Fair Work Act.[92]

6.102However, because these remedies were not created as specific responses
to workplace bullying they are not available to all bullied workers.[93]
For that reason, many people spoke of having to ‘shop around’ in an attempt to
try to find a legislative or regulatory framework that provides them with the
right to seek individual recourse. Some individuals submitted that the process
of trying to seek justice for themselves, compensation for their loss and
accountability of those who bullied them, can be just as or more damaging than
the initial bullying.[94]

6.103RCT Solicitors commented:

A by-product of this unsatisfactory state of affairs is that
workers begin to doubt the commitment of the legislature, and the legal system,
to address the problem of ‘bullying’.[95]

6.104WHS is the only legislative regime that currently responds specifically
to workplace bullying.[96] However, that
legislation only gives the regulators[97] a right to enforce the
law against those who have a statutory duty of care; it does not give
individuals a right to seek remedies when they are adversely affected because
their co-worker or employer has breached their duties of care. Harmers
Workplace Lawyers explained:

While an employee is entitled to make a complaint to an
authority such as WorkCover NSW about incidents of workplace bulling, these
laws provide no meaningful way for an employee to pursue a civil remedy to
redress the impact of workplace bullying on their health and career.[98]

6.105South Australia’s WHS laws are the only ones in Australia that set out a
process for resolving workplace bullying complaints outside of the workplace.
Section 55A of the Occupational Health, Safety and Welfare Act 1986
allows a dispute to be referred to the Industrial Relations Commission for
conciliation or mediation. [99] However, SafeWork SA
commented that it is limited in giving the target of bullying a resolution
because the commission cannot make a determination of whether there has been
bullying or impose a penalty.[100] It is also limited
because the resolution process is not available if the worker has left the
workplace.[101]

6.106The Government of South Australia acknowledged that the focus of
investigations on how the hazard of bullying is being managed by an employer,
rather than on the individual circumstances of the person who complained for
being bullied, can be perceived as unsatisfactory:

In many cases the complainants are left with the perception that
they have not received ‘justice’, and that the alleged bully has been ‘allowed
to get away with it’.[102]

6.107Dr Caponecchia suggested that the lack of an individual right to seek
remedies under WHS laws may not be a flaw within that legislative regime so
much as a misconception within the community about the role of WHS regulators.[103]
It was noted by the Anti-Discrimination Commissioner for Tasmania, Ms Robin
Banks, that WHS regulators have ‘a prosecutorial function which deals with [workplace
bullying] as a wrong against the state.’[104] Ms Banks contrasted this
with a ‘process like discrimination law that deals with it as a wrong against
the person and seeks to remedy that wrong for them.’[105]

6.108In noting their support for an individual right to seek remedies
following workplace bullying, SafeWork SA suggested that the criminal law
system in which WHS laws sit may not be the most appropriate place to locate an
individual right to seeking redress.[106] Mr Bryan Russell, Executive
Director of SafeWork SA stated:

The South Australian government considers that [there] should
also be a mechanism for individuals to pursue their own workplace bullying
complaints separate to the occupational health safety regulator but outside of
the criminal law system. A low-cost, easily accessible judicial or dispute
resolution process would allow an individual affected by workplace bullying to
lodge a complaint and seek some form of redress in instances where a
prosecution under the work health and safety laws has not been pursued by the
regulator.[107]

6.109Other submissions, including that from the Law Institute of Victoria,
argued that there needs to be a ‘quick, cost effective civil remedy through an
appropriate tribunal for bullying in the workplace’.[108]

6.110The VTHC contended that the process must be fast, efficient, specific to
workplace bullying and under civil law where the complainant does not have to
prove their complaint to the stricter and more difficult to satisfy standard
that is required under criminal law.[109]

6.111The Australian Institute of Employment Rights said that, given the lack
of enforcement by WHS regulators, an individual recourse such as this could
also provide an additional deterrent to workplace bullying: :

While occupational health and safety legislation recognises
the onus on employers to protect employees from physical and mental health
risks resulting from poor workplace culture, it is extremely rare for an
employer to be prosecuted in this area. Enforcement mechanisms exist for
ordering penalties for a workplace injury or death arising from a physical
hazard. However, for an employee who, having been subject to long term bullying
and other negative behaviours at work, develops a serious mental illness or
even dies, there is usually no effective mechanism to monitor this abuse and to
enforce a penalty against the employer. Without such a mechanism there is
little incentive for employers to improve workplace culture, and certainly very
little to deter them from the existence of poor workplace culture in their
business.[110]

Could the Fair Work Act be
extended?

6.112Many submissions supporting the introduction of a specific civil right
of recourse for individuals suggested that it should be provided under
industrial relations law, or more specifically the Fair Work Act 2009.[111]

6.113As well as applying to nearly all Australian workers, there was support
for extending the Fair Work Act to address all types of workplace
bullying because the legislation already provides effective and timely
resolution processes.[112] Currently these
processes can only be utilised in very limited workplace bullying matters that
involve unfair dismissal or adverse action taken against a worker because they
have or have exercised a workplace right, such as making a complaint to their WHS
regulator.[113]

6.114Harmers Workplace Lawyers suggested that providing a means of resolution
through the Fair Work Act could be achieved by requiring claims of
workplace bullying to be ‘made initially to Fair Work Australia so as to allow
an opportunity for a compulsory conciliation conference to occur’.[114]
They argued that utilising this forum could result in early resolution of
workplace bullying complaints because:

the members of Fair Work Australia not only have extensive
experience in dealing with a range of workplace issues and disputes, but are
also very experienced in facilitating early intervention in claims with a view
to achieving a resolution by way of conciliation.[115]

6.115Harmers contended that only if complaints cannot be resolved through the
conciliation process should the complainant have the right to pursue the matter
and seek remedies through the court system.[116] This is because
currently Fair Work Australia does not have the power to make orders about
resolution, so the matter must proceed to court for such remedial orders to be
made.[117]

6.116The United Mineworkers’ Federation of Australia (UMFA) submitted that if
the Fair Work Act is expanded to capture all types of workplace
bullying, Fair Work Australia should be empowered ‘to arbitrate disputes that
arise between an employee and their employer about behaviours that constitute
bullying and by order be able to remedy it’. UMFA argued that this is necessary
because the ‘complicated, protracted and expensive’ nature of the court process
deters many workers from seeking remedies.[118]

6.117It is, however, unclear whether the functions of Fair Work Australia
could be expanded to enable them to make determinations about all cases of
workplace bullying, regardless of whether they fall under the criteria of the
current general protections or unfair dismissal provisions of the Fair Work
Act. Ms Bernadette O’Neill, General Manager of Fair Work Australia
commented that following the High Court’s decision in regards to Work Choices
it is very likely that the Commonwealth Government does have the constitutional
legal capacity to deal with workplace bullying under industrial relations laws.
However, she also acknowledged that it would be a monumental change and the
legal and constitutional capacity is only one of many factors that would need
to be taken into account.[119]

Committee comment

6.118In recognition of the many calls from individuals who gave their
personal accounts of bullying in the workplace, as well as a number of other
stakeholders, the Committee supports the availability of a single right of
individual recourse for all workers affected by workplace bullying.

6.119The current legislative and regulatory frameworks have created
perceptions of an unfair and unjust system whereby only a very limited group of
workers who have been bullied can seek individual recourse and remedies under
anti-discrimination law, the Fair Work Act and workers’ compensation
law.

6.120Providing a new individual right of recourse would ensure an equal right
for all workers to seek restitution if they are bullied at work. Regardless of
whether a worker is bullied on discriminatory grounds such as race, gender or
age, because they have exercised a workplace right protected under the Fair
Work Act the consequences for that bullying behaviour could be treated the
same.

6.121Providing one right of recourse for all people who have been affected by
workplace bullying could also address the distress and harm experienced by
targets of workplace bullying at the moment who must navigate through a number
of legislative and regulatory frameworks that may given them only some limited
right of redress.

6.122It is unclear whether the Fair Work Act could be extended to
provide a formal resolution process, with the potential for the complainant to seek
remedies, for all workplace bullying disputes. This is because workplace
bullying is not only a matter of industrial relations. The evidence has clearly
indicated the desirability of viewing it as first and foremost a WHS issue
because of the risks it poses to health and safety.

6.123However, there was widespread support for a right of individual recourse
that replicates that which is available to workers who are adversely affected
because of their workplace rights under the Fair Work Act.

6.124It is necessary that any arbitration process to address workplace
bullying and provide remedies to affected workers rely on the expertise of
those experienced in resolving such matters, such as Fair Work Australia, and
those equipped with the knowledge and skills to address workplace bullying
specifically, such as Safe Work Australia and the jurisdictional WHS
regulators.

6.125The Committee notes concerns that the court process can be arduous and
often too difficult for individuals to navigate their way around. However, as
this type of process is provided to workers seeking remedies in relation to other
workplace disputes under the Fair Work Act and anti-discrimination laws,
the Committee believes it may be appropriate to adopt a similar process in
relation to workplace bullying.

6.126Such a process should be not be costly nor a drawn out process. It
should adhere to the same principles and practices of effective dispute
resolution that Fair Work Australia already utilises and promotes for
facilitating the resolution of a grievance or dispute between the parties by
reaching an agreement through conciliation or mediation. However, if agreement
cannot be reached an individual should have access to an adjudicative process
that provides decisions on cases in a quick manner, with limited costs incurred
by the parties, such as that which the Committee understands is provided by
Fair Work Australia.

6.127These processes should sit within a civil law jurisdiction because of
the lower burden of proof that is required. In relation to the availability of
criminal laws, there may be some temptation to rely on the application of civil
penalties and this could in turn dilute the application of WHS and criminal penalties
to workplace bullying. For that reason WHS regulators and police should not
perceive individual remedies as a replacement for penalties enforceable under WHS
and criminal legislation.

Recommendation 23

6.128

The Committee recommends that the Commonwealth Government
implement arrangements that would allow an individual right of recourse for
people who are targeted by workplace bullying to seek remedies through an
adjudicative process.

Support for getting workers back
into the workforce

6.129Many submissions highlighted that often workers who are injured at harmed
by bullying need to take periods of leave to recuperate. There are also people
who need to leave the workplace where they were bullied indefinitely because
the circumstances there pose too much of a risk to their health and safety.[120]
Evidence was also presented from people who are prevented by their injuries,
such as severe anxiety and depression, from ever being fit to return to work.[121]

6.130The Australian Industry Group explained that return-to-work assistance
is available to these workers through workers’ compensation:

Employers are obliged to provide workers’ compensation to
workers who suffer an illness or injury resultant from bullying behaviour. This
obligation includes a positive duty to facilitate the employee’s return to work
in a full or partial capacity.[122]

6.131However, the limited availability of workers’ compensation to workers
who suffer injuries arising from workplace bullying means that this assistance
will not be available to all workers who are out of the workforce because of
workplace bullying.[123]

Workers’ compensation return-to-work
programs inefficient

6.132The NNWWC explained that if a worker has made a successful workers’
compensation claim for workplace bullying, they may be placed on a workers’
compensation return to work plan.[124] However, a small
proportion of people succeed in making a successful workers’ compensation claim
for workplace bullying.[125]

6.133The risks of workplace bullying at a workplace cannot be viewed in the
same way as physical risks and hazards can. Return to work programs that
primarily cater to return workers who have suffered physical injuries at the
workplace to work are not necessarily effective in return workers who are
injured because of non-physical workplace bullying engaged in by people whose
behaviour cannot be managed in the same way as physical hazards. The NNWWC
elaborated:

Return to work plans, whilst well intentioned, are often
unable to affect the cause of the psychosocial injury because the perpetrator
of workplace bullying remains in the same work site as the target, there is no
education or training to accommodate the bullied workers and no support systems
or people in place for the bullied worker to go to upon their return.[126]

6.134The Community and Public Sector Union also discussed the failure of
workers’ compensation schemes to address the issue before a worker is returned
to the workplace:

Notably, the Workers Compensation System does not bring about
any resolution of the issue, but merely seeks, where claims are accepted, to
compensate the target for any loss incurred financially or in quality of life.
Once declared fit for work, the target may then be returned to exactly the same
workplace situation, or transferred to another workplace. Once again, it is the
target who pays the price.[127]

Broader assistance is available
through employment participation programs

6.135The Department of Education, Employment and Workplace Relations (DEEWR) explained
that they have responsibility ‘for a range of measures aimed at increasing
participation outcomes for disadvantaged and vulnerable Australians’.[128]

6.136Unfortunately, evidence was not received about the specific measures
available and whether they could assist people who are injured to any degree by
workplace bullying return to the workforce. However, DEEWR noted :

In the 2012–13 Federal Budget the Government committed $7.1
million over four years to ensure five Community Based employment Advice
Services can continue to assist thousands of Australia’s most vulnerable
workers. These not-for-profit organisations provide advice, assistance and
information to Australians who experience difficulties in asserting and
exercising their rights at work.[129]

Committee comment

6.137The Committee was struck by the number of individuals who courageously
spoke about and submitted evidence of their struggles to return to work because
of the injuries they sustained being bullied at work. The large majority, if
not all, of the individual submissions presented by people who are currently
outside of the workforce noted a desire to return to work; however, some people
require support to overcome their injuries, regain their confidence and regain
employment.

6.138It is acknowledged that through workers’ compensation schemes some
workers adversely affected by bullying are provided with assistance in
returning to work. However, there are many workers who cannot access workers’
compensation for the injuries they sustained from bullying because of the
difficulties in proving they arose from work, and therefore cannot access these
return to work programs.

6.139If this assistance is tied to returning the worker to the same workplace
where they were bullied, the appropriateness of that is questioned. No one
should feel they have to choose between returning to a workplace where they
will be subjected to bullying or trying, without support, to gain other
employment, especially when overcoming injuries sustained because of bullying.

6.140The Committee recognises that these people may be entitled to assistance
through the workplace participation programs that DEEWR has responsibility for.
However, given the number of people who spoke of having no support to return to
work though, it would be beneficial for there to be more public awareness of
the assistance that can be provided to people to re-enter the workforce,
particularly those who feel they are unable to work because of psychological
injuries arising from workplace bullying.

6.141A worker who has suffered a workplace injury because of bullying but
cannot obtain workers’ compensation should not be left to suffer on their own
with no support to regain employment.